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Tuesday, 18 August 2015

Following on from yesterday's
Katposton the Bristows real-time mock patent trial under the new
scheme offered by the Unified Patent Court (UPC) system, we now bring you
the latest developments (links to the earlier episodes in this saga are listed
in the post mentioned above):

Yesterday this weblog reported on
the case management issues which were resolved at the beginning of the oral
hearing in these proceedings. The court directed that validity would be
discussed first, with the defendants, who were counterclaiming for revocation,
being invited to speak first and being allocated half an hour for submissions.
This was split between two advocates -- one English (Myles Jelf) and one French
(Anne-Laure Bouzanquet) -- from the defendants' team. In response, the
claimant likewise used two advocates, both English (James Boon and Katie
Hutchinson). Again, half an hour was allocated.

The UPC can both impose firm time limitson parties' submissions and enforce them

Much of the discussion centred on the burden of proof
applicable in the UPC to show availability of a crucial prior oral disclosure –
a lecture at an academic conference. Unsurprisingly on the facts, the
defendant team argued for an English-style 'balance of probabilities' approach,
while the claimant team argued for a European Patent Office (EPO) style
"to the hilt" test, adding that EPO has developed particular
principles for oral disclosures at conferences, including that the evidence of
the lecturer alone was not sufficiently reliable. The parties agreed that
EPO case law was not binding on the UPC, but the claimant argued strongly that
it was important not to diverge from the practice of the patent-granting
authority, while accepting that in time there could be a convergence of
practice, with UPC decisions influencing the EPO. The defendant team
pointed out, however, that there was a difference between substantive law and
procedural law, and that the EPO's approach on this issue of burden of proof
was a reflection of it not being set up to resolve evidential disputes, whereas
the court was perfectly able to do so.

On obviousness, both teams applied a problem-solution analysis, though noting that other national approaches could also be applied. They both agreed that, either way, the same result would be reached -- though of course disagreeing as to what that result would be.

Well-known for disclosures --but well-regarded ...?

After submissions, the expert witnesses were called.
The presiding judge invited the technical judge ("Judge" Adair) to
lead the questioning. He did so in a way reminiscent of an Oxbridge tutor
trying to coax the correct answer from a nervous 18 year old interviewee.
His questioning revealed his own views on the some aspects of the case, and he
even offered his own evidence in the course of questioning. He was also
gently admonished by Presiding Judge Westmacott for going on rather too long,
pointing out that, of the allocated time, perhaps the parties might want at
least some. The parties were also allowed to question the witnesses, and
the nature of the questions from the two parties was indistinguishable in terms
of being leading or non-leading: the court did not pull up either
"re-examiner" when straying over the normal English line. Each
questioning session lasted only 20 or 25 minutes, but each witness was forced
into making an important concession: in the case of the defendants' witness
(Claire Wilson), that she had taken a stepwise approach in her analysis of
obviousness, while the claimants' witness (Charlie French) had approached the
prior art with a significant degree of scepticism due to the nature of the
journal in which the prior art article had been published (in her view a
poorly-regarded journal). At 2.00 pm the parties gave short final
submissions on validity in the light of the evidence (curtailed by five minutes
for the claimants as they had overrun on their submissions in the morning).

A prize booby

The court then moved on to infringement which, to remind
readers, centred on the responsibility of the defendants for off-label
prescription for the patented second medical use. First Dr Bacon, an
ex-sales representative of the defendants, was called on behalf of the
claimant. His evidence had been filed rather late but had been admitted
on the basis that the defendants could open the questioning of him. This
was very much English style, and a tough battle of wills, but it was brought to
an end by the court when time was running short. Questioning by the
claimants in response was less English style and certainly over-stepped normal
re-examination boundaries, including putting to the witness a new document
never before seen in the case, which was a picture of a "booby prize"
given to the witness when he had come last in the sales team one month.
It seemed clear that, from Dr Bacon’s perspective, the person who set the rules
on how salesmen went about their tasks was his immediate boss, one Mr Brian
Cordery, but who had not been called to give evidence.

... and the 'controllingmind of the company'?

The next witness was Dr Sally Field, the CEO of the
defendants. She was charged with defending her company from allegations
of deliberate encouragement of off-label prescription, which she did in
response to questioning by “Judge” Rieu by attributing the stellar sales
achieved by the sales staff to Mr Cordery’s legendary inspiration and work
ethic. She was thus able to justify everything done in a balanced and
logical manner. However, she was plainly not the controlling mind of the
company in relation to the real practice of the company in sales promotion
matters; and, in response to questioning by the court, confirmed that Mr
Cordery was still employed and so could have been called to rebut Dr Bacon’s
evidence directly.

That left submissions on infringement. Again the time
was divided equally between the teams and each party again used two advocates
so as to split the work. The claimants this time fielded Rob Burrows and
Amy Cullen, while the multi-national defendant team used German qualified
Benedikt Migdal and Liz Cohen, with additional comments from Claire
Phipps-Jones.

The judges indicated that they would abide by the direction
to produce the written decision within six weeks, on which the Kat will report
later. Unusually for adversaries in litigation, the parties and the
witnesses then retired together to The Black Friar for well-earned drinks.

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